The Interactive Process Under the Americans with Disabilities Act and California Fair Employment and Housing Act
The California Legislature recognizes the importance of the interactive process in determining a reasonable accommodation for an individual with a disability. The interactive process is triggered when the employer has knowledge the employee may have a condition that may qualify as a disability in results in some limitations that could require an accommodation. Actual knowledge of the diagnosis that limits the employee in a major life activity is not required.
If the employer has knowledge the employee may have a condition that may qualify as a disability, it has an affirmative duty to initiate the interactive process to determine the need for a reasonable accommodation whether the employee requests an accommodation or not. The employee is not required to request a reasonable accommodation before the employer's obligation to engage in a timely, good faith interactive process is triggered. The employee need not use "magic words" such as accommodation or reference the Americans with Disabilities Act or the Fair Employment and Housing Act. Thus, where the employer knows of an employee's disability and need for possible accommodation, the employer must initiate the interactive process even absent a request from the employee.
While California law prohibits disability-related inquiries, such inquiries are permitted upon a showing they are job-related and consistent with business necessity. If an employer has information suggesting the employee cannot perform the essential functions of his/her job or may need an accommodation to do so, it is job-related and consistent with business necessity for the employer to ask the employee about the issue.
Engaging in the interactive process means the employer and employee exchange information necessary to determine what type of accommodation will assist the employee. The process should identify the precise limitations resulting from the disability and potential reasonable accommodations to overcome those limitations. While not required to implement the accommodation preferred by the employee, the employer must consider the employee’s suggestion. Both parties must cooperate in good faith during the interactive process, and failure to do so will determine if the employer is liable under California law. If questions exist regarding the limitations of an employee and what the employee can do, employers are advised to request permission to submit questions to the employee's physician to seek the necessary clarification as opposed to relying exclusively on medical reports. While it is preferred the employee participate directly , the employer’s failure to deal with a representative of the employee may violate the interactive process duty.
The interactive process is an ongoing, fluid one which may require continual reassessment. If a reasonable accommodation proves ineffective, the employer is obligated to reinitiate the interactive process if it has knowledge the accommodation is not working. Unless it is readily apparent to the employer, the employee must provide notice the original accommodation is no longer working before the employer is obligated to reinitiate the interactive process.
The objective of the interactive process is to determine whether a reasonable accommodation is available to enable the employee to perform the essential functions of his or her job. Documenting the process and information exchanged can assist the employer in establishing its good faith participation in defending any claim of disability discrimination, failure to accommodate and failure to engage in a timely, good faith interactive process.